THE LIMITS OF FREE SPEECH | PAGE 1, 2, 3
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"If I was an abortionist, I would be afraid." So said Andrew Burnett, one of the defendants, on the stand. Burnett helped circulate the posters. He cried during his testimony, passionate in his belief that abortion is the cold-blooded murder of babies, and that in the face of such a crime a person could be morally justified in killing an abortion provider. But Burnett himself has not committed murder, and other defendants stated that they had signed pledges of nonviolence. Michael Bray, another defendant, is the author of a book called "A Time to Kill," which defends the killing of abortion providers as justifiable homicide. But he hasn't killed anyone himself. The defendants argued throughout this trial that their words are simply words, protected expressions of opinion and clearly allowed under the First Amendment. They have not threatened individuals, have offered no rewards, incited no individuals to act against the law.

There were small as well as broad legal questions being argued here, and in this space I can only present the broadest. Facing the six plaintiffs were 13 defendants -- 12 individuals and the American Coalition of Life Activists, a splinter group of the more mainstream anti-abortion movement. (Andrew Burnett also represented the Advocates for Life Ministries organization.) Even the central legal questions are labyrinthine, since the plaintiffs used FACE, the Free Access to Clinics law, which bars activists from inciting violence against abortion doctors and patients, and RICO, the Racketeer Influenced Corrupt Organizations Act, which prohibits various kinds of conspiracies and extortion.

The creator of the Nuremberg Files Web site, Otis O'Neal Horsley Jr., was not even a defendant, partly because the suit was filed in 1995. The Web site didn't appear until 1996, even if much of its content was provided by the defendants, a fact still in dispute. In one of its stranger moments, the trial used Horsley, instead, as a witness -- for the defense, as he willingly took full responsibility for the evidence in question.

The plaintiffs tried to include a bumper sticker that read "Execute Murderers/Abortionists," but the ACLU argued against this as an expression of "abstract advocacy," and the judge agreed. Since then, the ACLU has filed a brief supporting portions of each side of the lawsuit. "We believe the plaintiffs have the right to go to the jury," says the ACLU's Simon. "But we would put a very, very high bar for the plaintiffs to recover. We do believe there is a way to balance" the sometimes conflicting values of free speech and freedom from the fear of violence.

The ACLU's biggest objection was specifically at the 9th Circuit Court's test for a threat, since it doesn't require the defendant to have clearly intended to threaten a person. In that definition, the speaker need not have meant to threaten, only to have known that the listener could interpret words that way. This, according to Simon, is clearly chilling to speech. "The speaker might have to worry" about his or her words to the extent that his "right to speak" might be intimidated. In its brief, the ACLU asked the court to apply a stricter standard, one in use in the 2nd Circuit Court, which requires "unequivocal, unconditional, immediate and specific" words that express a "gravity of purpose and imminent prospect" of violence.

More than one observer has noted the similarities to a previous civil action here in Portland, in which white supremacist Tom Metzger lost a huge judgment to the family of Mulegeta Suraw, an Ethiopian man murdered by several of Metzger's protégés. But there are actually few similarities. The court in that case held that Metzger's words and writings directly incited the murderers to act. Incitement goes to the criminal -- threats to the victim. The Planned Parenthood case didn't claim that the defendants encouraged an individual to commit a crime; rather, it claimed the intent was to terrorize the plaintiffs with the possibility of a crime.

The trial (which continued through the recent 26th anniversary of Roe vs. Wade) took place curiously outside of common debate. No cameras were allowed in federal courts, and Judge Robert Jones put gag orders on everyone concerned: plaintiffs, defendants and their lawyers. There were no television snippets on the evening news, no press conferences. The eight jurors are still unnamed, identified only by numbers. But it was still an acrimonious event, full of objections and judicial scolding. One observer described it as "just a blood fight in the 25th round, an ugly fight."

A friend of mine likes to say, "Rights divide, responsibilities connect." He believes the protection of individual rights sometimes goes too far, inviting damaging divisions between people. He sees this trial as an example of that, of speech that is clearly dangerous to society and shouldn't enjoy any kind of protection. Buried in these feelings is his belief in human goodness, his hope that we will, in the end, find a way to be kind to each other. I want to embrace this hope, but I wonder if it isn't nearly as dangerous as hateful speech -- dangerously naive. Questions of free speech always return to the central issue of who should decide, who will define our words: What will we consider kind? Good? Helpful? Harmful? Whose choices will prevail?

I have spent many years trying to see the world through the eyes of anti-choice protesters, to continually remind myself that in their world, I am dangerous, I am a killer, and they are as outraged by my acts as I am when I read of Rwanda, Kosovo, Auschwitz. I believe in direct action and civil disobedience in some cases, when legal avenues are exhausted. I consider such acts to be ones of last resort, but sometimes forced upon those who would stop harm when the government will not. This is not an attitude similar to anti-abortion radicalism -- it is, in its foundation, exactly the same. I may think their speech is cruel and hateful and mine is compassionate and kind, but they think the same of me.

Defendant Michael Bray said recently, facing down this suit, "If you are blocked of public protests, then people are left saying, 'What are we going to do?'" He made the point that any restriction on speech narrows the outlets for opinion and expression, and can create a motive for action instead of words. He made his position clear: "It leaves only one option: the covert use of force -- vandalism, blowing up places and terminating doctors." While I find Bray's point sympathetic in the abstract, I believe he meant this comment itself to be threatening to all who listen. And he didn't discuss the inarguable fact that force -- including vandalism, including "termination" -- is already being used to try and stop abortion.

Joan Bertin, director of the National Coalition Against Censorship, told me that she'd hesitated to visit the Nuremberg Files Web site. But when she did, she decided everyone should see it. "My first thought was that these people are completely nuts," she said. "The more people see it, the more will know how completely kooky it is." The best cure, to Bertin, is always going to be more -- more people seeing the words and pictures in question, more people talking about it. More words, more speech -- not less.

One of the central ironies is that it has been getting steadily more difficult to obtain an abortion, even as it's become harder to protest abortion. Pro-choice people feel we've seen the right to reproductive choice steadily erode away and access to even early-term abortion become increasingly difficult. But anti-choice people feel driven to violence because all their efforts haven't stopped abortion. "Both sides have lost their support," said Ashbel Green, "and the people left are the most passionate and the most lonely."

At the end of the trial, the judge gave the jury 49 pages of instructions, almost a third of them devoted to RICO. He instructed the jury to apply the easier 9th Circuit test and determine if the words formed a threat in the current climate, even if the defendants had not intended them to be threats. Michael Simon of the ACLU was openly disappointed in the judge's choice to use this looser standard.

Green reminded me that the First Amendment has been broadly interpreted only in recent years, and that this trial may be a mark of the limit of that trend. "In some ways you could see this as another way that the freedoms of the '60s are being revalued," he said. Believing in the concept of free speech no matter what it looks like is a lot easier in theory than in practice.

Throughout this trial, I've resisted the plaintiffs' arguments even while I embraced their courage and supported (financially as well as politically) their work. I have found myself reluctantly agreeing with our local newspaper's conservative columnist, who said that defining threats entirely by how they are heard is dangerous. If we can be sued not for our words but for how they are understood, the possibility of political silence is real for all of us.

Then I went to the Nuremburg Files, searching for familiar names, and found them -- the names and personal details of doctors, nurses and other pro-choice advocates I know. The Files, its advocates hope, will become "an exhaustive listing of every Abortionist presently plying their bloody trade in the USA." I looked for my own name, and I felt both relief and disappointment when I found it was not there. I imagined my face, address, telephone number, the names of my children, on a poster calling me guilty of crimes against humanity; imagined my name next to the crossed-off name of a dead doctor on the list. And it was my shaky relief that finally swayed me; I realized with a jolt exactly how Dr. Hern and Dr. Crist and others have felt when they saw their face under the "Wanted" signs. I've come to believe these are truly threats, that it is too late, too terribly late in the abortion debate to use these tactics anymore. I believe that at least some of the defendants had every intention of threatening the plaintiffs. But I'm not sure this case has been good for anyone.
SALON | Feb. 3, 1999

Sallie Tisdale's Second Thoughts column appears in Salon every other Thursday.

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